DADT has been in place for 17 years. There is absolutely NO REASON in the world to change anything for the additional few weeks it's going to take to resolve this issue. This issue is already in the process. HAS been in the process. And has been SCHEDULED to be completed with a course of action to be decided in the weeks to come. For the 9th circuit to even be involved is ridiculous. To force a chance on the military, that they aren't prepared to handle; knowing damn well that the resolution IS being worked with 99% understanding that DADT WILL be rescinded legislatively (WHERE THE DECISION BELONGS), is the courts taking their power way too far.
There is NO guarantee that Congress WILL repeal DADT. None at all. There is much talk about some GOP members doing everything they can to block it. The guarantee is not there. Even with the survey leaks indicating that a repeal will not impact the services based on their results in terms of numbers of people opposed, they won't be able to act as long as the FEDERAL law is in place. They cannot repeal it, only the governmental branches can.
The military has a legislative and executive branch to make military law and policies. The military has a judicial system to handle legal issues. They also have an appeals system in place; INCLUDING THE UNITED STATE SUPREME COURT; to hear conflicts and appeals. ALL of this is 100% constitutional, yet the 9th circuit feels they are suppose to be involved.
They legally can, this IS within their jurisdiction. Again, the jurisdiction has not been the point of appeal, the policy and its merits are what are being considered, not jurisdiction.
The DADT doesn't bother me. Hopefully it will be rescinded soon. I just don't like states, and in this case the legislative/executive branch (Along with the military), being legislated by the judicial branch. That's not their job. The Supreme Court is already part of the military judicial system. it's that way for a reason. A Constitutional reason.
It is their job to review federal laws which segregate. This is not "legislating from the bench" as you keep saying. If the law was based on race or gender, I'm sure your attitude would change. This is another case of discrimination based on a trait which does not impact the capabilities of the individual and is in place to please a group who does not LIKE the discriminated group. A law based on a population's dislike of a minority but not based on a real ability to serve is not the same as handicaps or medical issues. A paraplegic can't serve because their condition makes service detrimental. LGB can't service because a number of non-LGB individuals don't like them!
While I digressed a bit on that rebuttal, Justice Kennedy is reviewing the stay. He's certainly on the Supreme Court. So yes, the law has, in a manner, reached the SC which you have identified, IYO, as part of the military legal chain of command. So, his decision will will be in accordance with even your personal view of the judicial CoC for the military. If he removes the stay, will you argue even though it was a SC decision?
The problem is: The judicial branch of government isn't what abolished desegregation in the military. As you pointed out, it was an executive branch decision; backed by the legislative branch. "The way it's SUPPOSE to be".
Wasn't the EO because the legislative branch DID NOT support desegregation! The legislature was ready to stone-wall it, but President Truman had the courage to do the right thing and repeal that discriminatory law since he could not rely on Congress to do the right thing. Congress did not back him. People, following your premises, would have said wait for Congress! I'm glad we didn't.
However, if the Judicial branch of government is allowed to legislate in this matter, the military MAY NOT BE ALLOWED to move forward at a pace it can sustain. They might be forced to proceed with an IMMEDIATE change. We have to get our congressmen to get the appeals and supreme court to define the role of the congress and the president in this matter, and tell the 9th circus court, that this is NOT in their jurisdiction.
Again, it IS their jurisdiction! Based on legal precedence in this country, they are within their rights as federal judges! You are wrong here. Wrong. The military might have to move their schedule up by a couple weeks. I don't think they will collapse, we've done more with less advance notice. Call their choice "legislating" if you will, but it's protecting the civil rights of a group that has been denied for illogical and absurd reasons.
A side-note to this discussion. The integration of LGB will not be like racial or gender integration. The members are already there. They have established their own reputations among units by their own work. If those that are LGB choose to come out within their unit, the response will be more complex that we think. Will it be rocky, in some cases, ya. But will Joe Gay's best buddy Bob suddenly hate Joe after 5 years of solid friendship. Will Commander Lesbian suddenly have her troops disregard her authority if she's already formed a reputation for fair and partial leadership. While some shocks will occur, these are people already well known in their chains. For the most part, I think people will quickly adjust because the person has already been there and earned the respect due based on their service, not their orientation. New recruits will enter basic with LGB peers and will grow in the system with LGB which will allow the lower ranks to populate more and more with people used to the new order. It's not like gender and racial where the people entered at the bottom and the ranks had to adjust. The LGB are already in the system, in sizable numbers, and those that DO come out, will act as ambassadors in a sense (good and bad) for the military LGB.
This is a long winded way of saying - the people are there and their orientation will likely have little impact on the perceptions of those around them except for those with biases against LGB. Now who should be punished for those biases, the "victim" or the propagator? I certainly hope no one would say the victim.
As tpg admirably said, the commander's and the command environment will play a huge part in ensuring the process is smooth. I have faith they and their NCOs will provide the best transition possible and we will look back wondering why so many fought the transition for whatever reason, personal bias or personal belief about the method of repeal.